Careless, Careless...

From the Chicago Sun-Times:

"A frozen embryo destroyed in a Chicago fertility clinic was a human being whose parents are entitled to file a wrongful-death lawsuit, a Cook County judge ruled Friday. (...)

Alison Miller and Todd Parrish hoped to conceive a child with help from the Center for Human Reproduction, but the one fertilized egg the couple created was thrown out "in error" by a clinic worker.

Friday, Judge Jeffrey Lawrence II said "a pre-embryo is a 'human being' ... whether or not it is implanted in its mother's womb" and the couple is entitled to seek the same compensation awarded to other parents whose children are killed.

"Philosophers and theologians may debate," he wrote, "but there is no doubt in the mind of the Illinois Legislature when life begins. It begins at conception." (...)

Courts have upheld statutes that allow homicide charges when fetuses are killed along with their mothers but have not extended the same legal status to unimplanted embryos, the experts said."

One of the relevant laws is an amendment to the Wrongful Death Act, which reads as follows: "Sec. 2.2. The state of gestation or development of a human being when an injury is caused, when an injury takes effect, or at death, shall not foreclose maintenance of any cause of action under the law of this State arising from the death of a human being caused by wrongful act, neglect or default." Here's what the author of this amendment has to say about the decision: "Former Illinois state Sen. Mark Rhoads of Western Springs led the writing of the amendment, and in an interview Friday he noted it was in no way intended to apply to in vitro procedures - something Lawrence acknowledged in his ruling. "I don't even know what the state of frozen embryos was back in 1980" said Rhoads, who now lives in Virginia. But Rhoads, who read the decision after the Daily Herald faxed it to him, said the judge did a good job of making the most reasonable extrapolation from the law as it was written." To which I can only say: if he didn't intend for this amendment to cover in vitro fertilization, he should have written it more carefully.

The second relevant law is, of course, the Illinois abortion law. It reads, in part: "the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child's right to life and is entitled to the right to life from conception under the laws and Constitution of this State." Again, this would seem to rule out any restriction of the Wrongful Death statute to, say, embryos that have been implanted in a mother, or that have developed for more than a few days after conception.

The Illinois abortion law is quite clear that human beings have, from conception, a right to life equal to that of any human being, and that Illinois law makes an exception for abortion only because the Supreme Court has ordered it to. None of what goes on in during IVF is abortion, and therefore none of it would seem to fall under this exception. That being the case, if this decision is upheld, IVF clinics in Illinois might have to answer such questions as: If you fail to implant all the embryos you create for a woman or a couple, is that similar, from the point of view of the law, to failing to feed and house children? If so, and if the embryos die as a result of being left too long in the deep-freeze, have you killed a child through neglect, and are you guilty of the same crime that you would be guilty of had you abandoned a child, unclothed and unfed, in the wilderness? And, most obviously: are IVF providers and would-be parents who arrange for excess embryos to be disposed of guilty of murder? As far as I can tell, the answers to these questions might very well be: yes.

Comments

[Sebastian Holsclaw]

"And, most obviously: are IVF providers and would-be parents who arrange for excess embryos to be disposed of guilty of murder? As far as I can tell, the answers to these questions might very well be: yes."

On this point at least I suspect the abortion exception applies.

The neglect thing is more interesting.

[hilzoy]

Note: when I first started this post, it involved a parallel between inadvertently discarding a petri dish containing an embryo and inadvertently criminalizing large swaths of IVF, and a little rant against writing rhetorical gestures into law.. I then cut this out, but cleverly forgot to change the title, which seems to be the only non-editable part of a post. So that's what accounts for the title. For the record, I would have argued that both sorts of carelessness are wrong; the title was in no way meant to imply that tossing someone's as yet unimplanted offspring is not a big deal. (Though I don't think it's homicide.)

[Sebastian Holsclaw]

You can't change the title? What would you want it changed to?

[bob mcmanus]

Well, I suspect as Mr Rhoads demonstrates, the most abortion opponents don't really believe in "personhood-at-conception" and perhaps chose that formulation in order to fully engage Catholics etc in the struggle, or...had no better way to avoid the complexities of Roe-type formulations. "Personhood-at-viability" is another very sticky wicket.

[Jesurgislac]

I saw this over at Alas, A Blog
, and thought it worth repeating:

A fire breaks out in a fertility clinic and you have a choice: You can save a three-year-old child or a Petri dish containing 10 seven-day old embryos. Which do you choose to rescue?

I would rescue the child. I assume most of my readers would, as well. But I bet there are some pro-lifers who would say that they’d have no moral choice but to rescue the Petri dish and let the three-year-old burn.

If you see no difference between a fertilised embryo and an infant, then presumably rescuing ten and leaving one to burn is the correct moral choice. But in all other respects - madness.

[kenB]

I don't think that hypothetical is very helpful -- you can attach more value to the life of the three-year-old and still believe that the embryos should be fully deserving of protection. If you had to choose between saving a three-year-old and saving ten critically ill 90-year-olds, you might very well choose the former, but that in no way implies that you believe the 90-year-olds have no right to life.

[st]

And, most obviously: are IVF providers and would-be parents who arrange for excess embryos to be disposed of guilty of murder? As far as I can tell, the answers to these questions might very well be: yes.

More than that - what about IVF itself? This is an intentional procedure, with a very high failure rate, to which both the would-be parents and the IVF provider are subjecting the embryo. Many, many embryos die in such procedures, every day. If a parent intentionally exposed a post-birth child to such a risk, and the child died, they certainly would be held criminally liable for the child's death. I suppose this could be analogized to a high-risk "life-saving" procedure, but that doesn't capture what IVF really is. IVF providers intentionally create surplus embryos that are doomed never to become people. Surplus embyos are an inevitable and necessary byproduct of the IVF process, even in instances of sucessful IVF (this, by the way is why GWB's stem cell posturing makes absolutely no sense).

Therefore, the entire process is, in fact, a mechanism which embryos are created, only to be destroyed, sacrificed so that two people can realize a dream to become parents. And parenthood, while certainly a beautiful thing, is by no means an absolute human right to which all others must be subsumed. In other words, if embryos are people, the slaughtering of ten or twenty people in order to satisfy the nesting instincts of a single couple is monstrous, and those that perform this service for money are monsters, and must be stopped. This decision merely picks at the edges, and does not confront the true weight of its own implications.

I believe the above is nonsense, that IVF is a singular example of science bringing true joy to people, and that the light and love that this procedure has brought into the world, and the chances that this procedure has given to couples who otherwise would be denied the experience of parenthood is a positive boon to the world, a source of brightness and good. But make no mistake, if the doctrine expounded by this court is extended not to its limits, but merely to its next logical step, IVF is evil, and must be banned.

On this point at least I suspect the abortion exception applies

Really? Why? The Supreme Court has not addressed IVF in this context, and the IL law only withholds criminal penalties from such procedures as are protected by the decisions of the United States Supreme Court. You could make an argument by analogy, but it would be quite strained (as there is no pregnancy to terminate), and not supported by the actual text of the exception.

[Sebastian Holsclaw]

ST, I am responding to the narrow: "And, most obviously: are IVF providers and would-be parents who arrange for excess embryos to be disposed of guilty of murder? As far as I can tell, the answers to these questions might very well be: yes."

I'm rather inclined to suspect that if a mother can dispose of an embryo in the second trimester she can also do so at a much earlier stage. A much more interesting legal question would be who should be able to authorize it if the 'mother' is a donor rather than the person who was originally intending to impant the embryo.

[Katherine]

The other key piece of the law is this:

""Fertilization" and "conception" each mean the fertilization of a human ovum by a human sperm, which shall be deemed to have occurred at the time when it is known a spermatozoon has penetrated the cell membrane of the ovum."

I had no idea Illinois had a law like this. Do many other states? Based on a quick reading of the statute, it appears that the minute Roe is overturned, it may automatically become illegal for a rape victim in the state of Illinois to get an abortion, and quite possibly it also becomes illegal for her to use the morning after pill.

I do see a possible loophole for the morning after pill. The law says that:

"Fertilization" and "conception" each mean the fertilization of a human ovum by a human sperm, which shall be deemed to have occurred at the time when it is known a spermatozoon has penetrated the cell membrane of the ovum.

The morning after pill can work to prevent a fertilized egg from being implanted as well as to prevent an egg from being released, but you don't know when you take it whether an egg has been fertilized. But if I were a doctor I would be nervous.

I've previously been told I'm hysterical to worry about such things, that no state is going to ban birth control or the morning after pill, very few states will ban abortion for rape victims, and in liberal states like Illinois first trimester abortions will remain legal. But if they already ARE banned--the burden of inertia shifts. It takes the upper house of the legislature, the lower house of the legislature, AND the governor to pass a law against abortion, but it only takes one of the three to prevent the repeal of an existing abortion statute.

Do any other states have laws like this on the books? How many?

[Jesurgislac]

Kenb: you can attach more value to the life of the three-year-old and still believe that the embryos should be fully deserving of protection.

Illinois law, however, appear to feel that the "life" of a fertilised embryo is of more value than the lives of 10 90-year-old invalids... since I greatly doubt that there is any obligation on a private health-care facility to keep providing full life support to any patient who can't pay for it.

[Nell Lancaster]

A shame that Michael Totten and Christopher Hitchens are so obsessed with "not letting Iraq become a theocracy" -- they could be helpful in the state of Illinois.

[sidereal]

Leaving aside for a moment the grief caused to people trying to use IVF to conceive and the doctors and others engaging in the procedure, it would be refreshing to have this issue finally come to a head. There's a lot of rhetoric flying around, but I'd like to see the rubber hit the road. And not in a sweeping court decision, but in the legislature. Illinois' representatives should have to stand up and vote whether they think a fertilized ovum is deserving of the protections we give to a child. If so, then the IVF industry will move out of Illinois and all that that entails. And I expect a lot of very bizarre criminal cases will ensue.

[Sebastian Holsclaw]

As for Illinois Post-Roe, I'm quite confident that a Supreme Court ruling overturning Roe wouldn't interrupt the abortion industry in Chicago for more than one or two days. I trust the Illinois legislature to be rather responsive to people's feelings in that area. In fact we might get law better than Roe--with actual working distinctions between different gestational states for instance.

[Jesurgislac]

Sebastian: the abortion industry in Chicago

There's an abortion industry in Chicago? Got any cites to prove this, or is this again one of your "feels"?

[dutchmarbel]

Surplus embyos are an inevitable and necessary byproduct of the IVF process, even in instances of sucessful IVF

Not entirely true. In the Netherlands they are working on a protocol with IVF in the natural cycle (1 egg to work with).

Does that mean that people who implant more than say 2 embryo's will be charged with child abuse? And people who, on fertility drugs, get pregnant with quads or more?

[st]

Not entirely true. In the Netherlands they are working on a protocol with IVF in the natural cycle (1 egg to work with).

Really? Wow, I hadn't heard of that. Is the success rate any higher than "traditional" IVF?

I'm rather inclined to suspect that if a mother can dispose of an embryo in the second trimester she can also do so at a much earlier stage.

Yes, that's the argument by analogy I was referring to. You haven't explained why you think that will fit under an exception that is narrowly and carefully phrased to apply only to the specific facts of the Supreme Court's abortion jurisprudence.

[Katherine]

Well, I'm not familiar with Illinois politics (except to sing hosannas to its senators from afar & wonder why all their politicians either have the same names (Durbin & Durkin; Ryan, Ryan and Ryan) or unusual names (Obama, Blagejovich).

I do know New York and Massachusetts, two states that are at least as liberal as Illinois and probably more so. And from observing things here:

1)It is flatly absurd to say that any bill, let alone a bill on as sensitive a subject as abortion, could be drafted, approved by the state house, approved by the state senate, and signed into law by the governor in two days.

2) Until quite recently, the leader of the Massachusetts assembly was a pro-life Democrat who had the power to kill any bill he wanted to. He was tremendously unpopular around the state, but he remained in power--won his district overwhelmingly and intimidated legislators into supporting him--and only stepped down because of a pending criminal investigation.

3) I live in one of the most liberal cities in the entire United States of America. The mayor of my town briefly tried to disobey Governor Romney's enforcement of a law that banned out-of-state gay couples from receiving marriage licenses. The town next door is even more liberal; it has earned the nickname "the People's Republic." My state representative, whose district is located entirely within these two bastions of liberalism, is pro-life. Massachusetts, like New York and Illinois, is a liberal state where the Catholic church is very powerful. The electorate is largely pro-choice, but are willing to vote for pro-life legislators given that the issue is largely moot.

4) In both Massachusetts and New York, a bill increasing access to emergency contraception was proposed last year, but not passed because one chamber of the legislature did not allow a vote on the issue.

5) Currently, six states out of 50 have laws requiring that rape victims receive access to or information about emergency contraception in hospitals. (California, Illinois, New Mexico, New York, South Carolina (weird) and Washington.) Last year similar bills were considered, but NOT passed, in Arizona, Colorado, Hawaii, Massachusetts, Minnesota, Mississippi, Missouri, New Jersey, South Dakota, West Viriginia, and Wisconsin.

6) Currently six states out of 50 have laws that allow pharmacists to provide emergency contraception without a prescription (either over the counter or, more commonly I think, "behind the counter" where you speak to a pharmacist but don't need to see a doctor)--Alaska, California, Hawaii, Maine, New Mexico and Washington. Last year similar bills were considered, but NOT passed, in Illinois, Kentucky, Maryland, Massachusetts, New Hampshire, New Jersey, Vermont and West Virginia.

source

That's the morning after pill. It's a hell of a lot less controversial than abortion, and these bills pose simple yes/no questions where the majority of many of these states would answer "yes." In abortion, there's a greater spectrum of potential answers--any bill that legalizes abortion in some circumstances implicitly says it's going to be illegal in all others, and vice versa.

Given all that, it is not only implausible to me, but patently ridiculous, to suggest Illinois would resolve the issue in 48 hours.

[votermom]

The whole IVF legality thing is surreal.

On the ethical side of it though, I do recall reading a PopSci article that pointed out that there are few studies on the long term safety of assisted reproduction techniques on the offspring. Can't seem to find the article but here's some related links via google:
http://www.ivf.net/content/index.php?page=out&id=1099
http://www.abc.net.au/catalyst/stories/s904186.htm
http://uwadmnweb.uwyo.edu/INBRE/PastPrograms/repro_Lutz.asp

From the last link:
Since IVF has only been around for 25 years scientists have also not been able to study if there are long term effects on children born using IVF. There are some studies suggesting that infertility or chromosomal defects may be passed on to these children.

[Sebastian Holsclaw]

"There's an abortion industry in Chicago? Got any cites to prove this, or is this again one of your "feels"?

I don't feel the need to respond other than with scorn to someone who needs a cite to the idea that abortion transactions are performed in Chicago.

[Jesurgislac]

Sebastian: I don't feel the need to respond other than with scorn to someone who needs a cite to the idea that abortion transactions are performed in Chicago.

Ah - so you no longer wish to assert that Chicago has an abortion industry, instead you merely say "abortion transactions are performed in Chicago"? Fair enough: backing down rather than attempting to defend an outrageous assertion is always fair enough.

[Sebastian Holsclaw]

I know I just wrote a post on distinctions that got taken over by the fact that I don't like Amnesty International, but I don't understand the distinction between industry and abortion transactions that causes you to think I have backed down. If you want to suggest that abortion cannot anywhere have an industry because it doesn't involve factories creating products using a mechanized process, I guess you have a point. But then you might not think there is an 'ad industry' or a 'service industry' either.

If you are questioning the concept that abortions take place in an organized fashion, based on monetary transactions, licensed by the state, with its own advocacy groups, its own referral systems, and through Planned Parenthood its own advertisments, in other words all the trappings normally associated with any service industry, you would be wrong.

And since I think you understood me quite perfectly the first time....

[Catsy]

I think what Jes is objecting to is the use of the term "abortion industry". It is a term of art specifically used by the anti-choice crowd in an attempt to invoke distateful imagery of millions of assembly-line abortions in order to stir up anti-abortion resentment. Regardless of whether it is linguistically accurate to refer to there being a service industry for abortion, you need to keep in mind the context--these terms do not exist in a vacuum.

Compare and contrast, for instance, with many Bush opponents' use of the term "Bush regime" in order to invoke the negative connotations of the term, despite the fact that it is technically and linguistically accurate--and you'll get an idea of why this raises the hackles of some pro-lifers.

[Jesurgislac]

Sebastian: I don't understand the distinction between industry and abortion transactions that causes you to think I have backed down.

If you can show me where in Chicago you'll find the factories or the companies that devote their profit-making activities exclusively to the manufacture of more and more abortions, then?

Ad industry? I can show you any number of companies that exist to produce more and more advertisements.

Service industry? That's defined as "An industry that produces services rather than goods. Examples include transportation, banking, retail trade, and entertainment." And indeed, you could link to any number of companies that have developed explicitly to make a profit from services such as transportation, banking, entertainment, etc.

Show me which companies in Chicago have developed exclusively to manufacture abortions as a profit-making concern...?

[fdl]

i have a distinct feeling this thread is about to recapitulate the "military dictatorship" thread.

SH: will you admit that some people see the term "abortion industry" as carrying unfair connotations?

Jes: will you admit that you're threadjacking?

let's see if i can head this off. doubt it.

Francis

[Jesurgislac]

Jes: will you admit that you're threadjacking?

Yes. Sorry.

[dutchmarbel]

Dutchmarbel: "Not entirely true. In the Netherlands they are working on a protocol with IVF in the natural cycle (1 egg to work with)."

Really? Wow, I hadn't heard of that. Is the success rate any higher than "traditional" IVF?

No, succesrate is lower. But riscs are lower, percentage twins is lower (which is better for the kids) and it is less hard on the couple because you don't have all the hormones and injections. I think the study they did in Groningen had 30% pregnancies and 25% children after three treatments.

But our succes-percentages are allready slightly lower than the US because they don't put back more than two embryo's anymore. It is easier to get a treatment though, since they are usually partly paid for by medical insurance and a lot cheaper than in the States (these days 3000-4000 dollar I think)

[Sebastian Holsclaw]

I think what Jes is objecting to is the use of the term "abortion industry". It is a term of art specifically used by the anti-choice crowd in an attempt to invoke distateful imagery of millions of assembly-line abortions in order to stir up anti-abortion resentment. Regardless of whether it is linguistically accurate to refer to there being a service industry for abortion, you need to keep in mind the context--these terms do not exist in a vacuum.

I only bolded it 'cos it is funny in context. :)

Sure I am perfectly well aware that my terminology invokes nasty images that are technically accurate but a bit unfair. A lot like 'war crime' when talking about bombing a TV station, 'anti-choice' when talking about people who have objections to some abortions, or 'imperialism' as commonly misused to describe US action--to choose three that have appeared rather recently. But in the four wrongs don't make a right vein...

"SH: will you admit that some people see the term "abortion industry" as carrying unfair connotations?"

Yes. I was a bit inflammatory.

[st]

these days 3000-4000 dollar I think

If you mean in the states, try $25,000 for three cycles of IVF, or @ 8,000 per. If you mean that's what it costs in Holland, then, damn. That's cheap.

[Jesurgislac]

st, this is roughly what IVF costs in the UK, if you get it in an NHS hospital. I don't know what private clinics charge.

(Fertility treatment on the NHS is a complicated issue.)

[dutchmarbel]

If you mean in the states, try $25,000 for three cycles of IVF, or @ 8,000 per. If you mean that's what it costs in Holland, then, damn. That's cheap.

Normal IVF is ca 1100-1400 euro for labcosts, average costs for hormones 1200 euro.

[liberal japonicus]

I'm not flogging this article, even though I put it up in the farm subsidies thread, but it seems particularly interesting here.

[Catsy]

A lot like 'war crime' when talking about bombing a TV station, 'anti-choice' when talking about people who have objections to some abortions, or 'imperialism' as commonly misused to describe US action--to choose three that have appeared rather recently.

You know, I actually struggled a bit in deciding which term to use. I flatly refuse to use the misnomer term "pro-life"--because when you break down the agendas and priorities behind most anti-abortion legislation and rhetoric, it becomes clear that it isn't at all about protecting life (for fun, cross-reference death penalty advocates with anti-abortion beliefs), it's about forcing women to carry all pregnancies to term.

There was a lively thread on dKos recently about just what term to use in describing anti-abortionists to accurately frame the issue (accurately, that is, from the standpoint of someone who supports a woman's right to choose). While some of them were creative (pro-birth, pro-reproduction), these failed by the same metric as "pro-life": they gave a positive sound to something I believe is deeply immoral. At the end of it, I resumed using my longtime favorite--"anti-choice"--because it succintly sums up the crux of the issue, that being the right to choose whether or not to have a child.

However, like most effective frames, it tends to piss off the other side, and I used it without thinking. I plead guilty to doing exactly what I was explaining. :>

[Jesurgislac]

Catsy: At the end of it, I resumed using my longtime favorite--"anti-choice"--because it succintly sums up the crux of the issue, that being the right to choose whether or not to have a child.

Yes, exactly. And I agree with you about the difficulties/inaccuracies of using "pro-life" to describe people who really aren't "pro-life" - they simply want to force women to carry pregnancies to term. (There's considerable overlap, among "pro-lifers" with people who don't want there to be easy access to contraception, and people who don't want kids to have sex education classes at school: the core issue among the "pro-lifers" really seems to be how to make sure women have as little control as possible over their own lives, especially with regard to sex/fertility.) So anti-choice, anti-choicers, seems a very descriptive, realistic term.

But you're right that it annoys many people who are on the "pro-life" side of the fence: and I am equally outraged by people on that side of the fence who describe me as "pro-abortion". So I guess for the sake of polite discourse, in mixed company we should each stick to using the label for the other side that the other side prefers: If Sebastian will remember to call me pro-choice, I'll remember to call him pro-life.

Deal?

[dutchmarbel]

But you're right that it annoys many people who are on the "pro-life" side of the fence: and I am equally outraged by people on that side of the fence who describe me as "pro-abortion"

But you *are* not pro-abortion, so that would be an inaccurate term. Most "pro-lifers" however are definately not pro-life. Anti-choice (however apt as a description) might be inflammatory, but wouldn't anti-abortion be something everybody agrees upon?

[Jesurgislac]

Dutchmarbel, I was thinking not in terms of accuracy (for once) but in terms of non-inflammatory speech... :-)

but wouldn't anti-abortion be something everybody agrees upon?

Sure. The problem is, "anti-abortion" describes me, too - and many others on the pro-choice side of the fence.

[Anarch]

I suggest "Little-Endians" and "Macrons". Just because.

[I leave it to the reader to determine which term corresponds to which position.]

[dutchmarbel]

The problem is, "anti-abortion" describes me, too - and many others on the pro-choice side of the fence.

So does pro-life. In my viewpoint even more accurately, since life starts later in my worldview.

Anarch: isn't that more about people who are in favor of (or not in favour of) anticonceptions? breaking the egg vs fixed addition?

[Dianne]

At risk of being pedantic, may I point out that life doesn't begin with conception or birth. Life began in the precambrian and since then all life has come from other life. I don't think even the biblical literalists are trying to bring spontaneous generation back as a theory. The sperm is alive. So is the unfertilized egg. So are the fertilized egg, the 9 month old fetus, the newborn, the cancer the fertilized egg mutates into, the monozygotic twins derived from a single egg, etc. The question I think more relevant is which of these living organisms is a person? The medical definition of "death" is the cessation of all brain activity. Perhaps the onset of brain activity might be a reasonable place to define the onset of human life. It's not a perfect definition, but at least it would stop people from trying to define single celled organisms as people.